This paper examines the laws that apply to protests in NSW, showing that it is the common law right to assembly that provides the legal basis of what is commonly called the right to protest.
The right to protest peacefully is a defining feature of liberal democracy, a system of government characterised by the tolerance of dissenting minority opinion. Protests can be on a diverse range of contentious issues, although in recent times the mining of coal and coal seam gas has been a particular focus of protest activity. In response to these protests, which have often seen protesters climb and “lock on” to mining equipment and freight trains, the Baird Government has foreshadowed introducing additional legislation to deter such action.
The legal basis of the right to protest in NSW is the common law right to peaceful assembly, which can be traced back to the Magna Carta. The right is further protected by the Australian Constitution under the implied freedom of political communication.
The legislative context in which the common law right to assembly operates in NSW is Part 4 of the Summary Offences Act 1988. While not conferring any rights itself, Part 4 facilitates the exercise of the common law right to assembly by encouraging mutual co-operation between protesters and police. The principles and factors that inform the discretion to be exercised by the Commissioner of Police and the courts under Part 4 have been identified by the courts in a number of cases.
While the right to protest remains an important means of political expression, extensive limits are imposed on protests by the criminal law, including the Summary Offences Act 1988, Crimes Act 1900, Inclosed Lands Protection Act 1901, Forestry Act 2012, Mining Act 1992 and Law Enforcement (Powers and Responsibilities) Act 2002. The civil law and, more recently, applications for victims compensation also play an important role in limiting the right to protest.
Other jurisdictions have taken different legal approaches. Queensland provides an express legislative right to peaceful assembly and Victoria and the ACT provide for a right to peaceful assembly under their human rights charters. More recently, Tasmania introduced new offences designed to protect workplaces from protest activity; and a Bill to introduce new protest offences is being debated in the Western Australian Parliament.
While there is consensus that peaceful protest is an important democratic right, debate remains about where the line between lawful and unlawful protest activity should be drawn.